MUHAMMAD IDREES Versus SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD

MISBAH ULLAH KHAN (MEMBER).‑ ‑‑The facts of the case which have come to light on examining the record and hearing the learned counsel for the parties are as follows:

2. The appellant, Muhammad Idrees, joined the T&T Department as Assistant Divisional Engineer, BPS‑17 on the recommendations of Federal Public Service Commission with effect from 26‑2‑1973. He was promoted as Divisional Engineer, BPS‑18 on his own turn. However, when his turn for promotion to the next higher post of Director/Deputy Chief Engineer, BPS‑19 came, he was considered in the meeting of the Central Selection Board held on 25‑5‑1982, 27‑8‑1983 and 20‑2‑1985. Each time the Central Selection Board did not recommend him for promotion and consequently he was superseded by his juniors i.e. respondents Nos. 3 to 19.

3: At long last when the appellant's name for promotion was approved by the Central Selection Board, he was given promotion to BPS‑19 on 12‑10‑1987.

4. The appellant made a representation to respondent No. 1 on 17‑4‑1989 saying that since 1982 he has illegally superseded, in spite of being senior to respondents Nos. 3 to 19. He also claimed that adverse reports on his performance were never communicated to him and that he had been treated discriminatory.

5. The representation made by the appellant on 17‑4‑1989 was not disposed of whereupon he filed a writ petition in the Lahore High Court for a direction to the department for disposing of his representation. It came up before the Hon'ble Court on 7‑4‑1990 when the following order was passed:

"The report has been submitted and perused. The learned Deputy Attorney‑General states that the respondents be allowed a fortnight to dispose of the representation of the petitioner.

2. In this view of the matter, the learned counsel for the petitioner does not press this petition. The same is disposed of as having borne fruit."

The representation of the appellant was rejected on 22‑4‑1990 and it was forwarded to him on 7‑5‑1990. The present appeal was filed before this Tribunal on 23‑5‑1990 challenging the order of his supersession from 1982 onwards and the rejection of his departmental appeal/representation by the Government.

6. At the very outset the learned counsel for the respondents contended that the appellant having been superseded 3 times from 1982 onwards did not make any departmental appeal and, therefore, the representation/appeal filed by him on 17‑4‑1989 was hopelessly barred by time and consequently the present appeal is incompetent. The learned counsel for the appellant, however, argued that since the appeal/representation of the appellant was not dismissed by the departmental authority on grounds of limitation, therefore, the delay, if any, shall be considered to have been condoned. He also urged that he had been making representations since 1982 onwards but without any response and therefore, he obtained an order from the High Court for reply. If the departmental representation was time‑barred then it could have been dismissed as such. Reference in this case was made to several cases, a few of which are as follows:

1986 SCMR 1213 at page 1216 (not captioned); 1987 SCMR 367 and 1990 SCMR 1356.

In the first case, the Hon'ble Supreme Court held as follows:

"As regards the question of limitation, we find that in fact the respondents had represented against the revocation order and his representation was not rejected on the ground that it was time‑barred or incompetent but on merits on 26‑12‑1982 and from that date the appeal filed on 16‑1‑1983 was within time."

In the second case, leave was granted to consider the question whether the Service Tribunal could on its own take up the bar of limitation when the departmental appellate authority had not chosen to pass the order on such grounds. In the last case, the. relevant part of the order of the Honourable Supreme Court is as follows:

"The main submission of the petitioner's learned counsel is that the review petition was duly entertained and rejected on merits and not on the ground that the second representation by way of review was not competent. Even if the observations of the learned Service Tribunal that the second representation by way of review was not competent be correct, even then, according to the petitioner he was not alone in thinking that the second representation by way of review was competent but so also was the Government inasmuch as it had duly entertained it and proceeded to dispose it of, on the merits. In these circumstances, this was a fit case for condonation of delay and a prayer to that effect was duly made before the Service Tribunal at the hearing of appeal:'

The last two cases relying are inconclusive as only leave has been granted. However, the first case, the conclusion determining the legal position that if the departmental appeal is not dismissed on the ground of limitation, the Tribunal cannot say that the departmental appeal was time‑barred and, therefore, the appeal before it is incompetent.

7. We, therefore, hold that the appeal before the Tribunal cannot be held to be incompetent on this ground.

8. Coming to the merits of the case, the main plea taken before us is that there was adverse entries in the Annual Confidential Reports of the appellant which have never been communicated to him and that of supersession on the basis of those adverse entries was not justified. In this respect, the learned counsel for the appellant has not been able to satisfy us that there were any adverse entries in the ACRs of the appellant and the same having not been communicated to him. The minutes of the Central Selection Board held in 1982 shows that the appellant was superseded because he had six good and six average reports. This was considered by the Central Selection Board to be indifferent record. Needless to say that the posts in BPS‑19 are Selection posts and a civil servant with 50% on average reports will not qualify for promotion either on the marking basis or on the basis of overall record. We have not been able to find any illegality on the part of Central Selection Board in not considering the name of the appellant for promotion to BPS‑19. There being no illegality, the question remains of fitness of the appellant to be promoted to a higher post in view of proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973 is outside the jurisdiction of this Tribunal. The appeal is, therefore, dismissed for want of jurisdiction.

9. No order as to costs.

10 Parties be informed

SYED ALLY MADAD SHAH (CHAIRMAN): ‑‑I have availed the advantage of the judgment initiated by the learned Member. I agree with his view that the delay in preferring the appeal is condonable but, maintaining the regard for his views, I hold a different view that the Tribunal does have jurisdiction to adjudicate upon the matter. The reasons therefore are as under:

12. Appellant Mr. Muhammad Idrees, Director Planning, Central Telecommunication Region, Lahore has preferred this appeal for ante‑dation of his promotion in BPS‑19 to a date in the year 1983, when his next junior was promoted.

13. The facts in the background, stated by the appellant in his memo of appeal, are that he was inducted as Assistant Divisional Engineer (BPS‑17) in the Telegraph and Telephone Department on his selection by the Central Public Service Commission. He was promoted as Divisional Engineer with effect from 26‑2‑1973 vide office order dated 6‑6‑1973. He was superseded while the promotions were made during the period from 1982 till 12‑10‑1987. He submitted representation on 17‑4‑1989 for ante‑dation of his promotion with effect from 1982. His representation remained unresponded to and he. filed Writ Petition No. 4889 of 1989 in the Lahore High Court for issuing directions to the concerned authority for disposing of his representation. His writ petition was disposed of on 7‑4‑1990 with the order that the respondents would dispose of his representation within a fortnight as stated by the learned Deputy Attorney‑General. Ultimately, his representation was rejected on 22‑4‑1990 and a copy of the order was forwarded to him vide letter dated 7‑5‑1990. He then filed this appeal on 23‑5‑1990.

14. The appellant has contended that he was superseded all along on the basis of some adverse remarks which were never communicated to him. He has next contended that he was subjected to discrimination as his colleagues M/s. Bashir Ahmed, Khalid Habib, Muhammad Aslam (respondent No. 3) and Ghulam Muhammad (respondent No. 11), whose overall record was not better than his record, were promoted while he was superseded.

15. Besides the Government of Pakistan (through Secretary, Establishment Division and the Secretary, Ministry of Communications), the appellant has impleaded M/s. Muhammad Aslam, Muhammad Saeed Wazir, Zahir Muhammad Khan, Muhammad Mashkoor Hussain, Muhammad Sarwar, Abdul Ghafoor, Muhammad Latif, Tanvir Ahmed, Ghulam Muhammad, Amir Ali Khan, Mukhtar Hussain, Zafarul Haq, Muhammad Azim, Anwar Hussain Naqvi Syed, Muhammad Hussain, Muhammad Mumtaz Zafar and Muhammad Ikram as the respondents. The, Government functionaries have filed written objections whereas the other respondents have not filed written objections nor have they put up any appearance and have thus remained ex parte. The respondents 1 and 2 have advanced preliminary objections that the appeal is time‑barred and it is also hit by the provisions of section 4(1) of the Service Tribunals Act, 1973 as there is no original order which affected the terms and conditions of service of the appellant. On merits, the contesting respondents have stated that the name of the appellant was considered for promotion by the Central Selection Board at the meetings held on 25‑5‑1982, 27‑8‑1983 and 20‑2‑1985 but he was not approved for promotion for the reasons recorded the minutes of the meetings. They have taken the plea that since the appellant was superseded, he did not have case for ante‑dation of his promotion.

16. Ordinarily, preliminary objections are dealt with first and merits of the se are discussed later but this is a case in which factual aspect needs to be cussed first as it would be convenient to determine the preliminary objections which would require reference to certain events based on facts.

17. The facts which are not disputed are that the appellant was superseded in the years 1982, 1983 and 1985. The respondents have placed on record the extracts from the minutes of the meetings of the Central Selection board as Annexures 1, 2, 3 and 4. The extracts concerning the evaluation of the appellant are reproduced below:

EXTRACT FROM THE MINUTES OF THE MEETING HELD ON 25‑5‑1982

"30. Mr. Muhammad Idrees:

Since 1969 he had been graded good in 6 reports and average in 6 reports. In view of his indifferent record, he was not cleared for promotion."

EXTRACT FROM THE MEETING OF THE CENTRAL SELECTION BOARD HELD ON 27‑8‑1983:

"18. Mr. Muhammad Idrees :

His scores (54.8 marks) under "Overall Assessment" and (57.1 marks) under "Quality and Output of Work" fell short of the requisite standard. Since 1969 the officer has been graded "Good" in 7 and "Average" in 7 reports. In view of his mixed service record, he was not cleared by the Board for promotion."

EXTRACT FROM THE MEETING HELD BY THE CENTRAL SELECTION BOARD ON 20‑2‑1985

"16. Mr. Muhammad Idrees :

His score under Overall Assessment (58 marks) and under Quality and output of work (57 marks) fell short of the requisite standard. Since 1969 the officer had been graded Good in 9 and Average in 8 reports including his latest report for 1984 wherein the officer had been considered as "not yet fit for promotion". The Departmental Representative did not speak well of the officer's performance. In view of his unsatisfactory record, the Board did not consider the officer for promotion."

EXTRACT FROM THE MEETING HELD BY THE CENTRAL SELECTION BOARD HELD ON 14‑6‑1987

"1. Mr. Fazal Illahi Ch. (Sen. No. 5)

2. XX XX XX

3. Mr. Muhammad Idrees (Sen. No. 8).

These officers were considered by the Board in its meeting held on 20‑2‑1985 and were superseded in view of their indifferent service record and for securing less than the minimum marks prescribed for promotion since then they have earned two more reports for the years 1985 and 1986. Their score for overall Assessment as well as Quality and output of work is now more than the minimum requirement of 60 marks. In view of the improvement shown in the performance by these officers, the Board cleared them for promotion."‑

18. The learned counsel for the appellant frankly conceded at the outset, that there are certain limitations on the justiciability of the question of promotion of a civil servant. He made reference to proviso (b) in subsection (1) of section 4 of the Service Tribunals Act, 1973 and proviso in section 22 of the Civil Servants Act, 1973. There is analogous provision also in sub‑rule (1) of Rule 4 of the Civil Servants (Appeal) Rules, 1977. The relevant extracts are reproduced below:‑‑

Section 4 of the Service Tribunals Act. 1973:

4. Anneals to Tribunals : ‑‑(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, Within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal whichever is later prefer an appeal to the Tribunal:

Provided that‑‑

(a) xx xx xx xx xx xx

(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade;

(c) xx xx xx

Section 22 of the Civil Servants Act, 1973:

22. Right of appeal or representation : ‑(1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is provided to a civil servant under any rules applicable to him, such appeal or application shall, except as may be otherwise prescribed be made within thirty days of the date of such order.

(2) Where no‑ provision for appeal or review exists under the rules in respect of any order or class of orders, a civil servant aggrieved by any such order may, within thirty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order:

Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade:

Civil Servants (Appeal) Rules. 1977 :

4(1) A civil servant shall be entitled to appeal ‑to the appellate authority from an order passed by an authority which‑‑

(a), (b) (c) and (d) xx xx xx xx xx xx

Provided further that no appeal or review shall lie on matters relating to the determination of fitness or a person to hold a particular post or to be promoted to a higher post or grade

The learned council for the appellant, however, urged that the limitation imposed by law cannot be stretched to a case where the competent authority does not adhere to legal requirements in determining fitness or otherwise of a civil servant for promotion and he submitted that in the case of the appellant sere was sufficient evidence of discrimination and even violation of settled principle that no person shall be condemned unheard and, therefore, the question of supersession of the appellant could be examined by the Tribunal.

19. As regards discrimination, he made following submissions:‑‑

(i) In the meeting of the Central Selection Board held in 1982, the appellant was superseded on the ground that he was graded good in 6 reports and average in 6 reports and that was considered as his indifferent record, whereas the observations in respect of a colleague ref the appellant Mr. Khalid Habib were that he was not approved on account of bad reputation of dishonesty and yet his promotion was only deferred.

(ii) In the meeting of the CSB held in 1'963; the appellant was superseded on the ground that the Overall Assessment was 54.8 and Quality and output of work was evaluated at 57.1 and his overall record was mixed as he had secured 7 good reports and 7 average reports; whereas another officer by name Mr. Bashir Ahmad had overall Assessment at 53.5 and Quality and Output of Work at 50 and had 6 good reports and 3 average reports and his promotion was just deferred but he was not superseded. He also made pointation of another officer Mr. Khalid Habib whose evaluation was, no doubt, 76.5 in respect of Overall Assessment and 73.3 on Quality and Output of Work, but the observations were that he was deferred in 1982 and 1983 because of his Integrity being doubtful and yet he was not superseded, but his promotion was deferred. He also pointed out another officer Mr. Muhammad Aslam in whose case it was remarked that he was "Below requisite standard" and yet he was not superseded but his promotion was deferred. He also made pointation of two other officers M/s. Muhammad Hussain and Ghulam Muhammad whose overall record was not upto the mark and yet the former was cleared for promotion and the latter's promotion was deferred.

(iii) The appellant was superseded ultimately as his overall assessment was 58 and his Quality and Output of Work was evaluated at 57 and he had 9 good reports and 8 average reports and also because he had adverse remarks in his ACR for the year 1984 (not communicated) that he was "not yet fit for promotion", whereas another officer Mr. Muhammad Aslam whose Overall Assessment was 59 and his evaluation of Quality and Output of Work was 59 and yet he was cleared for promotion just on the ground that he belonged to Tribal Area. He also made pointation of another officer Mr. Bashir Ahmed, whose promotion was deferred in the year 1983 and his evaluation in the year 1985 was Overall Assessment.61 and Quality and Output of Work 52 and was cleared for promotion with retrospective effect from 1982.

The comparative study of the evaluation made by the Central Selection Board made pointation of by the learned counsel for the appellant is supported by the charts prepared by him which are correct reflections of the minutes of the meetings. It does appear that there is evidence of discrimination meted out to the appellant and the glaring instance emanating from the comparative evaluation of the appellant is that Mr. Bashir Ahmed's evaluation of his Overall Assessment and Quality and Output of Work was less than that of the appellant and even his evaluation on the basis of ACRs was less than that of the appellant and yet Mr. Bashir Ahmed's promotion was deferred and the glaring distinction on making discrimination Ahmed and the appellant was in the year 1985 that Mr. promoted with retrospective effect from 1982 when he was on deputation in Saudi Arabia and had not come .upto the standard of promotion in the year 1983, whereas the appellant was superseded. No doubt, the appellant was superseded also on the additional ground that he had adverse remarks in the year' 1984 that he was "not yet fit for promotion"; but these remarks were, admittedly, not communicated to him and the learned counsel for the respondents did frankly concede that these adverse remarks should not have been taken into consideration in the evaluation of the appellant for his promotion in the year 1985. The appellant was approved for promotion in the year 1987 on his overall evaluation which was above the minimum standard. It follows that the discrimination of the appellant in the promotion effectively occurred in the year 1985 when his colleagues Mr. Bashir Ahmed and Mr. Muhammad Aslam were promoted and he was superseded mainly on account of uncommunicated adverse remarks recorded in his ACR for the year 1984 but there was no effective discrimination in the years 1982 and 1983 in view of the facts mentioned above. It was at this stage that the authority of gauging fitness or otherwise of the appellant for promotion was miscarried and the privilege of the finality to the decision of the authority became justiciable‑ and the wrong done to the appellant needs to be corrected and the matter falls within the jurisdiction of the Tribunal as the appellant does not have any other forum to seek the relief prayed for. This view is fortified by the decisions of the Supreme Court in the cases reported in PLD 1983 SC 100 and PLD 1988 SC 155.

20. Adverting to the legal objections advanced by the respondents, the main objection is that of limitation. The learned counsel for the respondents contended that the appellant has challenged in this appeal filed on 23‑5‑1990 his supersession which took place in the years 1982, 1983 and 1985 and the appeal is, therefore, time‑barred. Elucidating his submissions, he stated that the appellant made representation first time on 17‑4‑1989, although he was promoted in the year 1987 and this belated representation did not afford him condonation of so much delay. It is true that the appellant's representation was much belated but the respondents were obliged to decide his representation after the appellant filed a Writ Petition No. 4889 of 1989 for disposing of his representation. Of course, his representation was rejected and such intimation was sent to him under letter dated 22‑4‑1990 and he received it under letter dated 7‑5‑1990. This appeal was filed on 23‑5‑1990. The representation of the appellant was rejected on merits mentioning that he did not have valid points for justifying ante‑dation of his promotion. Rejection of his representation on merits saved delay in making representation in the light of the decision of the Supreme Court, reported in 1970 SCMR 170, that an authority being conscious E of the question of limitation decides the appeal on merits, it shall be presumed that the delay had been condoned. Of course, the learned counsel for the appellant adopted another line of argument and urged that in view of the bar under law against the decision of the authority in determining fitness or otherwise of a civil servant for promotion or for holding a particular post, the appellant could not seek legal remedy from any forum unless he could know the grounds which were taken into consideration in superseding him. According to him, the appellant could not come to know the reasons of his supersession during 1982, 1983 and 1985 and it was after his promotion in 1987 that he came to know that he was superseded during the previous years on account of certain adverse remarks recorded in his ACR which were never communicated to him. It is unbelievable that the appellant could not know the reasons for his supersession. As stated above, the appellant did not have any solid ground for having agitated against his supersession in the years 1982 and 1983; but he did have a ground which has been taken now that the adverse remarks recorded in his ACR for the year 1984 which was not communicated to him, should not have been taken into consideration for superseding him. However, the delay in preferring appeal is covered in the light of the decision of the Supreme Court reported in PLD 1970 SC 170 referred to above.

21. Another legal objection put forth by the respondents is that there is no final order to have been appealed against and, therefore, the appeal is hit by subsection (1) of section 4 of the Service Tribunals Act, 1973. It has been mentioned above that the appellant did make representation dated 17‑4‑1989 against his supersession right from 1982 onwards and that was ultimately rejected by the competent authority as per letter dated 22‑4‑1990 issued from the Establishment Division. The relief sought by the appellant was that of antedating of his promotion to 1982 and the decision thereon constituted two be a final order which was appealed against.. It was not pointed out that there was any scope for further appeal to higher forum. Thus, the appeal does not seem hit by the provisions of subsection (1) of section 4 of the Service Tribunals Act, 1973.

22. For the reasons recorded above, the appeal is allowed to the extent that supersession of the appellant in the year 1985 was not in accordance with law and his representation for ante‑dation of his promotion does need reconsideration by the competent authority and it is directed accordingly. The appeal is disposed of in the above terms. No order is made for costs.

ORDER OF THE TRIBUNAL

By virtue of proviso (c) to subsection (2) of section 3A of the Service Tribunals Act, 1973, the decision of the Tribunal shall be that the appeal is allowed to the extent that supersession of the appellant in the year 1985 was not in accordance with law and his representation for ante‑dation of his promotion does need reconsideration by the competent authority and it is directed accordingly.

A.A./772/Sr. F Order accordingly.